Scholars Focus on Canadian Responsibilities Regarding Site C Dam

VANCOUVER, June 16, 2016 /CNW/ - Canadian scholars who express concern regarding inadequate regulatory review of the Site C Dam are focusing on questions of good governance, public accountability, and genuine reconciliation between First Nations and settlers.

Responding to a Statement by Concerned Scholars endorsed by the President of the Royal Society (www.sitecstatement.org), BC Hydro recently issued a press release. Noticeably absent from BC Hydro's May 25 statement is the central concern of affected First Nations.

Canadian law recognizes the sanctity of Crown-Aboriginal treaties, and requires the Crown act honourably in its actions in relation to the treaties [Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, http://canlii.ca/t/1m1zn]. Site C is on Treaty 8 territory. As with other treaties, Treaty 8 was entered into as the foundation for an ongoing relationship between Canada and the Treaty 8 nations.

The government has not assessed whether the Site C dam would infringe Treaty rights, despite the fact that the Joint Review Panel jointly commissioned by the provincial and federal governments made findings that directly support the claim that infringements would occur. Affected First Nations have argued that these infringements would not be justifiable in Canadian law.

Our earlier statements called on the Crown to act honourably, which clearly and unequivocally requires the Crown to assess – and if need be justify – infringement of treaty rights before it acts. Our concern is that the current process, which allows the Crown to infringe treaty rights and then wait for treaty nations to challenge them in court (via years-long legal actions), effectively places governments above the law.

Ultimately, citizens need to frame the Site C dam in terms of the rule of law. Law only rules when it binds governments as well as citizens – that is the heart of the notion of rule of law. Simply put, the main issue at stake is one of lawful governance. Does Canada follow its own laws and the recommendations of its review boards, or do governments choose not to follow their own laws, and ignore evidence-based expert panel recommendations with impunity?

On this basis, our position remains: "construction of Site C should be halted until court proceedings conclude." Disagreement with this position, we respectfully suggest, constitutes disagreement with the notion of the rule of law.

The preceding points are distinct and separate from the important question of consultation, which is secondary to the matter of treaty rights currently in the courts. Consultation does not, in other words, absolve governments from their responsibility to act in accordance with the honour of the Crown.

Further, to restate our concern regarding the environmental assessment process: our earlier Statement noted that the government did not follow the Joint Review Panel's recommendation to refer the Site C project to the BC Utilities Commission. In asking for this referral, concerned scholars are calling for the federal and provincial governments to follow the recommendations of the Joint Review Panel, which they themselves commissioned. The question of whether or not individual scholars or the Royal Society participated in the environmental assessment is not the issue. Rather, the issue is that a major recommendation of the Joint Review Panel—referral to the BC Utilities Commission, and thorough study of key issues—was not followed by the governments.

The federal and provincial governments have an unfettered opportunity to do the right thing: to put applications for further permits on hold, and then assess Site C through a proper process (including whether the project unjustifiably infringes Treaty 8 Rights). This would express a genuine commitment to meaningful reconciliation with First Nations, and to evidence-based decision-making.

Gordon Christie, Associate Professor, Peter A. Allard School of Law, University of British ColumbiaSakej Henderson, Research Fellow, Native Law Centre, University of SaskatchewanKaren Drake, Assistant Professor, Faculty of Law, Lakehead UniversitySharon Mascher, Professor, Faculty of Law, University of CalgaryDayna Scott, Associate Professor, Faculties of Law and Environmental Studies, York UniversityD'Arcy Vermette, Assistant Professor, Faculty of Native Studies, University of AlbertaCharis Kamphuis, Assistant Professor, Faculty of Law, Thompson Rivers UniversityMichael M'Gonigle, Eco-Research Chair in Environmental Law and Policy, University of VictoriaBrenda Gunn, Associate Professor, Faculty of Law, University of ManitobaKaren Bakker, Professor, Program on Water Governance, University of British ColumbiaRita Wong, Associate Professor, Faculty of Culture and Community, Emily Carr University of Art and DesignCarrie Bourassa, Professor, Indigenous Health Studies, First Nations University of Canada,